Abstract
Interim measures in the European human rights system may be defined as a tool, the purpose of which is to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency. Interim measures result in immediate protection being offered by the member state to beneficiaries in compliance with the order issued by the European Court. This chapter explores which typologies of cases have lead the former European Commission of Human Rights and the former and current European Court of Human Rights to apply or reject provisional measures in cases related to persons deprived of their liberty. The cases concern situations in which (a) their own nationals and non–national prisoners urgently need medical attention and (b) non–nationals with an order of expulsion or extradition whose life or health would be in serious danger in case of deportation from the member state. In the circumstances mentioned above, the adoption of interim measures for detained people imply the opportunity to be examined by a doctor, to receive medical treatment in the prison hospital or in a specialised institution, or imply the suspension of the expulsion or extradition order while the European Court has the opportunity to examine their case. Through an analysis of the case law, this contribution describes the circumstances the petitioners are in, the order issued by the European supervisory organs in those situations, the State’s compliance and the possibility that interim measures will be lifted.
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Notes
- 1.
See Ilascu and Others v Moldova and Russia at para 438.
- 2.
The European Convention on Human Rights was signed on 4 November 1950 in Rome and entered into force in 1953. Currently, there are 47 member States, i.e. all European states (except Belarus and the Holy See). Negotiations are under way to allow the European Union to adhere to the European Convention on Human Rights.
- 3.
Originally, the monitoring system under the European Convention consisted of a non-permanent European Commission on Human Rights and a non-permanent European Court of Human Rights. In 1998 the European Commission on Human Rights was abolished and the part-time European Court of Human Rights was replaced by a full-time and thus permanent European Court of Human Rights. The decisions and judgments of the European Court and most decisions and reports of the former European Commission can be found at http://www.echr.coe.int, through the HUDOC search engine.
- 4.
Paladi v Moldova at para 89; Ben Khemais v Italy at para 81; Grori v Albania at para 184.
- 5.
Practice Direction concerning ‘requests for provisional measures’, 5 March 2003, meanwhile replaced by Practice Direction ‘requests for interim measures’. http://www.echr.coe.int. Accessed 16. Oct 2009.
- 6.
Reference should be made in the following way: ‘Rule 39 – Urgent; Person to contact (name and contact details): [in deportation and extradition cases]; Date and Time of removal and destination.’
- 7.
See supra note 2 Ilascu and Others at para 199.
- 8.
See Aleksanyan v Russia at paras 47–52.
- 9.
See Taner Tanyeri and Others v Turkey.
- 10.
See Ilijkov v Bulgaria at para 50.
- 11.
See Panagiotis Vakalis v Greece.
- 12.
In the Istratiin case the Government held that the conditions in the Centre for Fighting Economic Crime and Corruption in Chişinău (CFECC) remand centre were appropriate. A doctor was employed there. In case of an emergency, detainees could be taken to a nearby hospital. There was no obligation under the Court’s case-law to transfer detainees outside their places of detention if they were offered appropriate medical assistance there. See Istratii and Others v Moldova at para 43. See also supra note 9 Aleksanyan at para 53.
- 13.
Denial of a request for asylum, if not accompanied or followed by an order to leave the country, is therefore insufficient to justify an interim measure.
- 14.
See supra note 2 Ilascu and Others. See also Babar Ahmad and Others v The United Kingdom; Rrapo v Albania and Abdulkhakov v Russia.
- 15.
D. v United Kingdom.
- 16.
See Yang Chun, Jian v Hungary. The same situation was described in the case of Ismoilov and Others v Russia and Shamayev and 12 Others v Russia and Georgia at paras 6–7. Information Note no. 47 at 41 and 74. In Petrit Elezi and Others, the petitioners believed that if they were returned to their country they would be in danger due to, among other reasons, the armed conflict and the support that they had given to one of the parties, specifically ‘The Kosovo Liberation Army’. See Petrit Elezi and Others v Sweden.
- 17.
Popov v Russia. See also Information Note no. 88 and Arsim Haziri and Others v Sweden.
- 18.
See supra note 10 Taner Tanyeri and Others; supra note 11 Ilijkov and Bhuyian v Sweden.
- 19.
See supra note 18 Popov. See also Vaja Ghvaladze v Georgia; supra note 5 Paladi and Grori v Albania.
- 20.
See supra note 9 Aleksanyan.
- 21.
In the Paladi case the Court adopted interim measures under Rule 39, stating that the applicant should not be transferred from the Republican Neurological Centre to prison with the proposal to ensure the applicant’s continued treatment until the Court had had the opportunity to examine the case. See, supra note 5 Paladi.
- 22.
In the Mashiur Rahman Bhuyian case the Commission asked the petitioner to commit no further suicide attempts and to no longer refuse to eat. See, supra note 19 Bhuyian. See also supra note 2 Ilascu and Others at paras 10, 448, supra note 10 Taner Tanyeri and Others.
- 23.
See supra note 11 Ilijkov.
- 24.
Soysal v Turkey and Moldova. See also Information Note no. 13 at 27–28, 282.
- 25.
Proof of belonging to the group of alleged victims is given by using objective criteria; such as the ties of belonging and the type of risk that allow individualization of the beneficiaries at the time of execution of the measures. See Penitentiaries of Mendoza v Argentina at paras 7, 13–14. See also Urso Branco Prison v Brazil.
- 26.
See supra note 26 Urso Branco Prison. See also Internado Judicial de Monagas (La Pica) v Venezuela.
- 27.
See, supra note 11 Ilijkov.
- 28.
See, supra note 18 Popov and supra note 20 Vaja Ghvaladze.
- 29.
In the Absandze case the Court refused to adopt the interim measures requested by the applicant’s lawyer to release the applicant, a former Cabinet minister who had been remanded in preventive custody on the grounds of the conditions in which he was held in custody and his rapidly deteriorating health, even though this was substantiated by a number of medical reports. See Absandze v Georgia. In the same sense see also, Wemhoff v Germany and supra note 11 Panagiotis Vakalis at para 226–227.
- 30.
Patane v Italy.
- 31.
See supra note 15 Rrapo v Albania and Abdulkhakov v Russia. See also Salkic and Others v Sweden, and Patrick Muliira v Sweden.
- 32.
See supra note 18 Arsim Haziri and Others.
- 33.
See supra note 16.
- 34.
The fact that the conditions in Algeria were less favorable was not a determining factor to obligate the State party to accept the claimant. See Bensaid v United Kingdom at paras 16–17; See also Mahin Ayegh v Sweden, and N. v United Kingdom.
- 35.
See, supra note 18 Popov, and supra note 17 Arsim Haziri and Others.
- 36.
Denmark, Norway, Sweden and Netherlands v Greece. See also Einhorn v France, and Fraydun Ahmet Kordian v Turkey.
- 37.
See supra note 17 Shamayev and 12 Others.
- 38.
See supra note 18 Arsim Haziri and Others.
- 39.
See supra note 37 Einhorn. The measures were maintained for 7 days; supra note 17 Shamayev and 12 Others. The measures concerning Russia were valid for 15 days; supra note 32 Salkic and Others. The measures were in effect for 7 days.
- 40.
Bodika v France. The measures were lifted after 5 months. Kazin Useinov v Netherlands. The measures were in effect for 5 months. Faig Osmanov and Jale Osmanova v Sweden. The measures were in effect for 10 months.
- 41.
Paez v Sweden. The measures were in effect for 22 months. Cardoso and Johansen v United Kingdom. The measures were lifted after 17 months. Francis Gomes v Sweden. The measures were in effect for 16 months.
- 42.
Chahal v United Kingdom. The measures were in effect for 26 months; Abdelnasser Saleh Moussa Shloun v Sweden. The measures were in effect for 2 years; see also supra note 35 Bensaid. The measures were in effect for 27 months.
- 43.
Bahaddar v Netherlands. The measures were in effect for 38 months. Salah Sheekh v Netherlands. The measures were in effect for 3 years. See, supra note 10 Taner Tanyeri and Others. The measures were in effect for more than 4 years.
- 44.
See, supra note 19 Bhuyian. In the Fraydun case, once the US authorities promised that the death penalty would not be imposed on the petitioner, the Court declared the petition inadmissible and lifted the interim measures. See supra note 37 Fraydun Ahmet Kordian.
- 45.
In the Vakalis case, after the applicant was released, the Commission judged that the dispute had been resolved and that there were no grounds of general interest to pursue the case. The case was struck from the list. See supra note 12 Panagiotis Vakalis. In the Patane case the Commission decided to strike the application from the list; subsequently the State informed that its courts had suspended the enforcement of the punishment. See, supra note 31 Patane.
- 46.
In the Aleksanyan case, in the final analysis, the Court considered that the national authorities failed to take sufficient care of the applicant’s health to ensure that he did not suffer treatment contrary to article 3 of the ECHR, at least until his transfer to an external hematological hospital. See supra note 9 Aleksanyan. In the Popov case, although the State complied with the measures, the Court held that Russia had violated articles 3, 6 and 34 because of the prison conditions of the petitioner, the lack of medical assistance and due process and for having been intimidated during the examination of the case. See, supra note 18 Popov. See also supra note 2 Ilascu and Others, and supra note 5 Paladi.
- 47.
The Court, in view of the guarantees offered by Ecuador and Spain, lifted the interim measures. See, Peñafiel Salgado v Spain. See also, Information Note no. 41.
- 48.
In the following cases the interim measures were lifted following the promise of the US authorities that the death penalty would not be imposed. See supra note 37 Einhorn. See also Nivette v France, and supra note 37 Fraydun Ahmet Kordian.
- 49.
See supra note 43 Chahal.
- 50.
Ismaili v Germany.
- 51.
Olaechea Cahuas v Spain.
- 52.
In the Shamayev case the measures were lifted when Russia promised that the petitioners would enjoy due process, access to medical treatment and legal support. See supra note 17 Shamayev and 13 Others.
- 53.
Eskinazi and Chelouche v Turkey.
- 54.
See Mamatkulov and Askarov v Turkey at para 104 and supra note 17 Ismoilov and Others.
- 55.
See supra note 48 Peñafiel Salgado, and supra note 16 Ismoilov and Others.
- 56.
See supra note 17 Ismoilov and Others; supra note 37 Fraydun Ahmet Kordian; supra note 37 Einhorn, and supra note 51 Ismaili.
- 57.
Soering v United Kingdom. See also supra note 49 Nivette; supra note 51 Ismaili, and supra note 37 Fraydun Ahmet Kordian.
- 58.
In the Ismoilov and Others case, in spite of the promise of the receptor State to respect the rights of the petitioners, the Court adopted interim measures to protect 13 Uzbekis, all of whom were Muslim and accused of belonging to an illegal organization and of possessing and disseminating subversive material. The State had explicitly promised that the applicants would not be sentenced to death, or tortured or subjected to any type of inhuman treatment. Their right to defense would also be respected and they would not be tried for political reasons. In its judgment on the merits, the Court held that there would be a violation of Article 3 in the event of expulsion. See, supra note 17 Ismoilov and Others at paras 116–128.
- 59.
In the Ismaili case, notwithstanding the promise of Morocco not to impose the death penalty on the petitioner, who was accused of having killed a policeman, the Court adopted interim measures. It ultimately declared the petition inadmissible and held that the deportation would not violate Article 3. See supra note 51 Ismaili.
- 60.
See supra note 52 Olaechea Cahuas.
- 61.
See supra note 43 Chahal.
- 62.
See, supra note 17 Shamayev and 12 Others.
- 63.
The Commission, after previously having refused to issue an interim measure requesting France not to proceed with the deportation of a Kurd to Turkey, reconsidered its earlier decision after the applicant had informed it that “un arrêté de reconduite à la frontière” had been issued and ordered the requested interim measure. The case was struck out of the list after the applicant was given refugee status in France and the “arrêté de reconduite à la frontière” had been revoked. See, D. v France. See also Information Note no. 50. In the same sense, in the Petrit Elezi and Others case, the petitioners, a couple with two children who were nationals of the former Yugoslav Republic of Macedonia but were of Albanian ethnic origin presented a petition in 2005 requesting the adoption of interim measures to stay orders of deportation after their requests for asylum were denied (since 2001), and after having exhausted domestic remedies. The State not only immediately complied but 11 months later asked that the case be struck out of the list since it had granted permanent residency to the petitioners. See supra note 17 Petrit Elezi and Others.
References
Abdelnasser Saleh Moussa Shloun v Sweden, App. no. 17185/04. Eur. Ct. H.R. (4 Apr 2006).
Abdulkhakov v Russia, App. no. 14743/11. Eur. Ct. H.R. (2 Oct 2012).
Absandze v Georgia, App. no. 57861/00. Eur. Ct. H.R. (20 July 2004).
Aleksanyan v Russia, App. 46468/06. Eur. Ct. H.R. (22 Dec 2008).
Arsim Haziri and Others v Sweden, App. no. 37468/04. Eur. Ct. H.R. (5 Sept 2006).
Babar Ahmad and Others v The United Kingdom, App. nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09. Eur. Ct. H.R. (4 Sept 2012).
Bahaddar v Netherlands, App. no. 25894. Eur. Comm’n H.R. (19 Feb 1998).
Ben Khemais v Italy, Appl. No. 246/07. Eur. Ct. H.R. (21 Feb 2009).
Bensaid v United Kingdom, App. no. 44599/98. Eur. Ct. H.R. (6 Feb 2001).
Bhuyian v Sweden. App. no. 26516/95. Eur. Comm’n H.R. (14 Sept 1995).
Bodika v France, App. no. 48135/99. Eur. Ct. H.R. (12 Oct 1999).
Cardoso and Johansen v United Kingdom, App. no. 47061/99. Eur. Ct. H.R. (5 Sept 2000).
Chahal v United Kingdom, App. no. 22414/93. Eur. Ct. H.R. (15 Nov 1996).
D. v France, App. no. 19794/92. Eur. Comm’n H.R. (7 July 1992).
D. v United Kingdom, App. no. 30240/96. Eur. Ct. H.R. (2 May 1997).
Denmark, Norway, Sweden and Netherlands v Greece, App. nos. 3321/67, 3322/67, 3323/67 and 3344/67. Eur. Comm’n H.R. (5 Nov 1969).
Einhorn v France, App. no. 71555/01. Eur. Ct. H.R. (16 Oct 2001).
Eskinazi and Chelouche v Turkey, App. no. 14600/05. Eur. Ct. H.R. (13 Dez 2005).
Faig Osmanov and Jale Osmanova v Sweden, App. no. 30977/05. Eur. Ct. H.R. (27 June 2006).
Francis Gomes v Sweden, App. no. 34566/04. Eur. Ct. H.R. (7 Feb 2006).
Fraydun Ahmet Kordian v Turkey, App. no. 6575/06. Eur. Ct. H.R. (4 July 2006).
Grori v Albania, Appl. No. 25336/04. Eur. Ct. H.R. (7 July 2009).
Ilascu and Others v Moldova and Russia, App. 48787/99. Eur. Ct. H.R. (8 July 2004).
Ilijkov v Bulgaria, App. no. 33977/96. Eur. Comm’n. H.R. (20 Oct 1997) and Eur.Ct. H.R. (26 July 2001).
Information Note no. 13, Eur. Ct. H. R.
Information Note no. 41, Eur. Ct. H.R.
Information Note no. 47, Eur. Ct. H.R.
Information Note no. 50, Eur. Ct. H.R.
Information Note no. 88, Eur. Ct. H.R.
Internado Judicial de Monagas (La Pica) v Venezuela, Provisional Measures Order. Int. Ct. H.R. (24 Nov 2009).
Ismaili v Germany, App. no. 58128/00. Eur. Ct. H.R. (15 March 2001).
Ismoilov and Others v Russia, App. no. 2947/06. Eur. Ct. H.R. (24 Apr 2008).
Istratii and Others v Moldova, App. nos. 8721/05, 8705/05 and 8742/05. Eur. Ct. H.R. (27 March 2007).
Kazin Useinov v Netherlands, App. no. 61292/00. Eur. Ct. H.R. (11 Apr 2006).
Mahin Ayegh v Sweden, App. no. 4701/05. Eur. Ct. H.R. (7 Nov 2006).
Mamatkulov and Askarov v Turkey, App. nos. 46827/99 and 46951/99. Eur. Ct. H.R. (4 Feb 2005).
N. v United Kingdom, App. no. 26565/05. Eur. Ct. H.R. (27 May 2008).
Nivette v France, App. no. 44190/88. Eur. Ct. H.R. (3 July 2001).
Olaechea Cahuas v Spain. App. no. 24668/03. Eur. Ct. H.R. (10 Aug 2006).
Paez v Sweden, App. no. 29482/95. Eur. Ct. H.R. (30 Oct 1997).
Paladi v Moldova, Appl. No. 39806/05. Eur. Ct. H.R. (10 March 2009).
Panagiotis Vakalis v Greece, App. no. 19796/92. Eur. Comm’n H.R. (15 Jan 1993).
Patane v Italy, App. no. 29898/96. Eur. Ct. H.R. (3 Jan 2001).
Patrick Muliira v Sweden, App. no. 7260/05. Eur. Ct. H.R. (23 May 2006).
Peñafiel Salgado v Spain, App. no. 65964/01. Eur. Ct. H.R. (16 Apr 2002).
Penitentiaries of Mendoza v Argentina, Provisional Measures Order. Int. Ct. H.R. (22 Nov 2004).
Petrit Elezi and Others v Sweden, App. no. 4244/05. Eur. Ct. H.R. (17 Jan 2006).
Popov v Russia, App. no. 26853/04. Eur. Ct. H.R. (13 July 2006).
Rrapo v Albania, App. no. 58555/10. Eur. Ct. H.R. (25 Sept 2012).
Salah Sheekh v Netherlands, App. no. 1948/04. Eur. Ct. H.R. (1 Nov 2007).
Salkic and Others v Sweden, App. no. 7702/04. Eur. Ct. H.R. (29 June 2004).
Shamayev and 12 Others v Russia and Georgia, App. no. 36378/02. Eur. Ct. H.R. (12 Apr 2005).
Soering v United Kingdom, App. no. 14038/88. Eur. Ct. H.R. (7 July 1989).
Soysal v Turkey and Moldova. App. no. 50091/99. Eur. Ct. H.R. (23 Jan 2001; 3 May 2007).
Taner Tanyeri and Others v Turkey. App. no. 74308/01. Eur. Ct. H.R. (6 Dec 2005).
Urso Branco Prison v Brazil, Provisional Measure Order. Int. Ct. H.R. (25 Nov 2009).
Vaja Ghvaladze v Georgia, App. no 42047/06. Eur. Ct. H.R. (11 Sept 2007).
Wemhoff v Germany, App. no. 2122/64. Eur. Ct. H.R. (27 June 1968).
Yang Chun, Jian v Hungary, App. no. 58073/00. Eur. Ct. H.R. (3 Aug 2001).
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Burbano-Herrera, C. (2017). Detained Migrants in Conditions of Extreme Danger: How Does the European Human Rights System Protect them?. In: Elger, B., Ritter, C., Stöver, H. (eds) Emerging Issues in Prison Health. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-7558-8_15
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